1 Answer from Attorneys

Identify fraud provisions are found in Title 16, Chapter 8, Article 9 of the Official Code of GA (OCGA). I am not sure exactly what kind of identity fraud you are talking about and if other provisions might also apply (use of a credit card or computer).

To prove the commission of the crime a prosecutor would have to prove that the defendant engaged in one of the acts described below beyond a reasonable doubt. The defendant's intent, as shown by the circumstances, would be willful and fraudulent.

OCGA § 16-9-121. Elements of offense

(a) A person commits the offense of identity fraud when he or she willfully and fraudulently:

(1) Without authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person;

(2) Uses identifying information of an individual under 18 years old over whom he or she exercises custodial authority;

(3) Uses or possesses with intent to fraudulently use identifying information concerning a deceased individual;

(4) Creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a fictitious person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person; or

(5) Without authorization or consent, creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a real person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person.

(b) A person commits the offense of identity fraud by receipt of fraudulent identification information when he or she willingly accepts for identification purposes identifying information which he or she knows to be fraudulent, stolen, counterfeit, or fictitious. In any prosecution under this subsection it shall not be necessary to show a conviction of the principal thief, counterfeiter, or fraudulent user.

(c) The offenses created by this Code section shall not merge with any other offense.

(d) This Code section shall not apply to a person under the age of 21 who uses a fraudulent, counterfeit, or other false identification card for the purpose of obtaining entry into a business establishment or for purchasing items which he or she is not of legal age to purchase.

See OCGA § 16-2-4 and § 16-2-6 for a discussion of what would be intentional and willful.

OCGA § 16-2-4. Presumption that acts of sound person willful

A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

OCGA § 16-2-6. Intention a question of fact;

The acts of a person of sound mind and discretion are presumed to be the product of the person's will but the presumption may be rebutted.